Beyond The Will, Client Compass

Undue Influence – The Basics

March 27, 2020


Editors’ Note: Starting in March, Beyond the Will will focus on one broad topic each month. Each week, a different author will post a new insight on the matter. Our posts in March will investigate the grounds for challenging a will, trust, lifetime transfer, or beneficiary designation.

Taking a brief break from the COVID-19 issues that have been a primary focus for everyone – including probate litigators – for the past several weeks, and getting back to our “regularly-scheduled programming,” this post will introduce undue influence as a grounds for challenging a will, trust, lifetime transfer, or beneficiary designation.

Undue influence generally involves coercing an individual into doing something that he does not want to do or destroying an individual’s free will so that he acts contrary to his own wishes. In the world of probate litigation, claims of undue influence often are raised in disputes over the disposition of assets. The person challenging the disposition will allege that the Decedent was coerced into making that disposition (e.g., signing the challenged will, trust, deed, etc.), acting favorably to the wishes of a person who exerted pressure on the Decedent, contrary to the Decedent’s independent desire. In ruling on a claim of undue influence in this context, the Courts must find that four elements were present:

  1. an unnatural disposition of property has been made;
  2. by a person who was susceptible to undue influence;
  3. benefiting someone who had an opportunity to exercise undue influence; and
  4. who in fact used that opportunity to procure the unnatural disposition.

What is an unnatural disposition? Who might be considered susceptible to undue influence? What constitutes an opportunity to exercise undue influence? How can you prove that such an opportunity was used to procure a certain disposition? These questions are, of course, subject to many nuanced answers, and the case law is intensely fact-specific. Of course, in making major life decisions, including the disposition of our assets, we all are influenced by many various individuals under many various circumstances. Not all influence is undue influence. This may best be further explored using the tried-and-true styling of Mr. Jeff Foxworthy:

If a Will was changed to benefit one child to the exclusion of the Decedent’s other children, only after that particular child moved into the Decedent’s home and took control of her personal and financial affairs, you might have an undue influence claim.

If a beneficiary designation names a home health worker, personal trainer, or handyman, rather than the Decedent’s family members, you might have an undue influence claim.

If changes to the estate plan were made after one or more individuals acted to isolate the Decedent from other friends or family (restricting telephone calls, limiting visits, etc.), you might have an undue influence claim.

If someone other than the Decedent was the one to locate, retain, and/or communicate with the attorney who drafted the challenged documents, you might have an undue influence claim.

Of course, there are many variations on these themes, and additional facts to consider from case to case. As with most probate litigation matters, reviewing the claim with an attorney who specializes in this area is critical, to ensure that all appropriate stones are turned over. Direct evidence of undue influence is rare, and it takes careful investigation to lay the right circumstantial foundation in these cases.


Until next time!


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